Unintended Consequences When Powerful People Speak

When Fareed Zakaria interviewed Lloyd Blankfein recently, Blankfein said something like, “I have to be careful. Sometimes, I’m just thinking out loud, and people take what I’m saying as an edict.” (I’m paraphrasing here, but you can listen to the interview yourself, and get the words exactly right.)

Blankfein is right: When important people speak, people sometimes listen. And that can cause problems.

Like in 1170, when Thomas Becket, the Archbishop of Canterbury, was excommunicating people who sided with the King of England in a dispute over the powers of the church and throne. According to oral tradition, King Henry II asked, “Who will rid me of this troublesome priest?” This was interpreted as a royal command, and four knights — Reginald FitzUrse, Hugh de Morville, William de Tracy, and Richard le Breton — traveled to Canterbury and assassinated the Archbishop.

If you’re important, you have to watch your words carefully.

When a member of the Board of Directors says, “I wonder how BigCo would handle something like that,” maybe he’s just scratching his head aloud. Maybe we shouldn’t assemble a task force to investigate whether BigCo has ever confronted the issue, how many times, and how it responded on each occasion. (Or maybe we should. It all depends.)

But that goes for less important people, too.

When a partner at a law firm says, “I wonder if there’s any email traffic on that subject,” the partner might be seriously curious. But this might also just be an idle comment. Three weeks later, when an associate presents the partner with binders of all email traffic on the issue (assembled at a cost of $40,000), the partner may not be pleased; “What the heck is all this stuff? I was just wondering aloud. And how much did you spend on this?”

So, too, in-house.

Suppose the general counsel asks, “What’s the statute of limitations on a possible claim against us?” She might just mean generally: In [some state], the most likely claim would be for negligence, and the statute would be [whatever].

But you might not hear it that way.

Before you ask outside counsel for a memo on that point, think.

Outside counsel is likely to decide that this is a serious issue, of intense importance to the general counsel. And it might turn out that there are four possible claims — negligence, misrepresentation, a state consumer fraud claim, and breach of contract. And it might turn out that different limitations periods govern each possible cause of action, and the dates on which each of those four periods starts to run is different.

When you present the general counsel with a 20-page memo analyzing the multiple possibilities (and concluding that the ultimate answer is uncertain), the general counsel may look at you like you’re crazy: “Why in God’s name did we commission research on this? We haven’t even been sued yet! I just generally wanted to know what the limitations period was.”

So be careful.

If you’re important, watch what you say.

And if you’re helping someone who’s important, make sure the boss actually requested something before you provide it.

Otherwise, you could accidentally martyr the Archbishop of Canterbury.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].